Supreme Court Seems Split In Case Of Baker Vs. Same-Sex Couple; Eyes Now On Kennedy

Demonstrators gather outside the Supreme Court on Tuesday as the justices heard arguments in a case about a Colorado baker who refused to create a cake for a same-sex wedding, citing moral objection.

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Demonstrators gather outside the Supreme Court on Tuesday as the justices heard arguments in a case about a Colorado baker who refused to create a cake for a same-sex wedding, citing moral objection.

Sam Gringlas/NPR

All eyes were on Justice Anthony Kennedy Tuesday at a riveting Supreme Court argument where the issue was whether a baker may refuse to create a wedding cake for a same-sex couple.

Kennedy was the center of attention because, with the rest of the court appearing to be evenly split, he very likely will cast the deciding vote in the case. And he is the author of every major decision favoring gay rights that the Supreme Court has ever decided.

A Reagan appointee, Kennedy is at the same time a fierce defender of the First Amendment right of free speech and the free exercise of religion. But the clashes inherent in those rights appeared to prompt some conflicting questions and positions from Kennedy.

The case before the court involves much more than wedding cakes, and it could have huge implications for all retailers and service providers.

That’s because the baker, Jack Phillips, owner of the Denver-area Masterpiece Cakeshop, claims his First Amendment right of free speech and religion exempts him from the state’s anti-discrimination law. To Colorado, however, he is a retailer and is barred from discriminating based on race, gender, religion or sexual orientation.

Tuesday’s argument opened with a series of hypotheticals posed by the court’s liberal justices. The questions were aimed at Phillips’ claim that baking a cake for a same-sex wedding would unconstitutionally compel him to speak as an artist and cake creator on behalf of same-sex marriage, which he opposes.

When Michelangelo is not an artist, but a baker is

“At the wedding ceremony, the speech is of the people who are marrying, and perhaps the officiant,” Justice Ruth Bader Ginsburg said. “But who else speaks?”

The artist speaks, replied Kristen Waggoner, representing the baker. “It’s as much Mr. Phillips’ speech as it would be the couple’s.”

“Who else then is an artist?” Justice Ginsburg asked. “The person who designs the wedding invitations, and the menus?”

“How about the jeweler, or the hairstylist, or the makeup artist?” Justice Elena Kagan questioned.

No, replied Waggoner, none of those are artists.

Jack Phillips, owner of Masterpiece Cakeshop, speaks outside the court. Phillips contends that his First Amendment right of free speech and religion exempts him from Colorado’s anti-discrimination law.

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Brendan Smialowski/AFP/Getty Images

Why not? asked Kagan, noting that a makeup artist has the word “artist” in her name and may be using her creativity and artistry, too.

And what about an architectural design? asked Justice Samuel Alito. Waggoner answered that it would not be protected.

“So in other words, Mies or Michelangelo or someone is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now that — that really does baffle me, I have to say,” Justice Stephen Breyer said.

Jack Phillips’ artistry is different, Waggoner insisted, contending at one point that a chef is not engaged in speech when she creates food for a wedding or a wedding anniversary but a baker is.

“We’re asking these questions,” Justice Breyer said, “because we want some kind of distinction that will not undermine every civil rights law.” Those civil rights laws have long barred discrimination based on race, sex and religion.

Solicitor General Noel Francisco, making his first appearance on behalf of the Trump administration and supporting the baker, agreed that the court should not allow such exceptions when discrimination is based on race. But he urged the justices to allow some narrow cases of discrimination, such as in this case, when the discrimination is based on gender, or religion, or sexual orientation.

“The problem for you,” Justice Kennedy remarked, “is that so many of these examples … do involve speech. It means that there’s basically an ability [for businesses] to boycott gay marriages.”

If you prevail, asked Kennedy, “could a baker put a sign in his window saying ‘We do not bake cakes for gay weddings’?”

Yes, replied Francisco. As long as the sign says the baker does not make custom-made cakes for gay weddings.

“I think that’s an affront to the gay community,” Kennedy said. He added a few moments later that if the Trump administration’s position were to prevail, bakers all over the country might receive messages urging them not to bake cakes for gay weddings.

“Tolerance is essential”

But when Frederick Yarger, the lawyer for the state of Colorado, went to the lectern, a clearly angered Kennedy pointed to a statement by one of the seven members of the state Civil Rights Commission who was quoted saying, “freedom of religion used to justify discrimination is a despicable piece of rhetoric.”

Suppose, said Kennedy, that we thought at least one member of the commission based his decision against the baker in this case on a hostility to religion. “Could your judgment then stand?” he asked.

Charlie Craig, Ria Tabacco Mar of the ACLU, Deborah Munn (mother of Charlie Craig) and Dave Mullins in front of the Supreme Court on Tuesday. Craig and Mullins are the couple refused a wedding cake by Phillips.

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Charlie Craig, Ria Tabacco Mar of the ACLU, Deborah Munn (mother of Charlie Craig) and Dave Mullins in front of the Supreme Court on Tuesday. Craig and Mullins are the couple refused a wedding cake by Phillips.

Emily Kan/NPR

Lawyer Yarger argued that while a baker may refuse to put a message on a wedding cake if he finds it offensive, he may not refuse to sell a cake to a gay couple if he has sold the same cake to a straight couple. That, said Yarger, is the essence of discrimination based on identity, just as it would be if a baker refused to sell the same cake to an interracial couple or an interfaith couple.

Justice Kennedy wasn’t buying it.

“Tolerance is essential in a free society,” he told the lawyer, “and tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

Representing the same-sex couple, lawyer David Cole of the American Civil Liberties Union told the justices that there is no evidence here that the state was targeting religion. Pressed by the court’s conservatives, he reminded them of the late Justice Antonin Scalia’s opinion declaring that a broad general law regulating conduct that is neutrally enforced is constitutional even when it has an incidental effect on some people’s religious views. Otherwise, said Scalia, we would be in a world that effectively permits “every citizen to become a law unto himself.”

Cheers and tears outside the Supreme Court

While the argument progressed inside the court, there was a festive mood outside. Supporters of both sides played music, chanted and carried signs and banners. All in polite good humor. But when the litigants emerged from the courtroom, there were tears on both sides.

Art on display outside the Supreme Court on Tuesday.

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Art on display outside the Supreme Court on Tuesday.

Emily Kan/NPR

Phillips choked up as he read a statement describing the harassment and difficulties he has faced in his five-year legal battle against the state of Colorado.

“Stopping the wedding art has cost us much of our business — so much so that we are struggling to make ends meet and keep the shop afloat,” he said. “It’s hard to believe the government is forcing me to choose between providing for my family and my employees, and violating my relationship with God.”

Dave Mullins and Charlie Craig, the couple turned away by Phillips, came to the microphones, too.

“We’re two regular guys,” said Craig. “Dave and I do not have an agenda; we do, though, have hopes and dreams. … We want to grow old together and most importantly we want everyone to be treated equally.”

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Lawsuit Could Put Trump’s Sexual Misconduct Accusers Back In Spotlight

Summer Zervos, right, a former contestant on The Apprentice, accused President Trump of sexual harassment and has filed a defamation lawsuit against him.

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Summer Zervos, right, a former contestant on The Apprentice, accused President Trump of sexual harassment and has filed a defamation lawsuit against him.

AP

A state judge in New York is weighing whether to dismiss a defamation lawsuit that could bring allegations of sexual misconduct against President Trump back into the spotlight amid a national reckoning over sexual harassment.

The case was brought by Summer Zervos, a former contestant on Trump’s TV show, The Apprentice. According to a complaint filed with the New York State Supreme Court, she alleges that in 2007, Trump kissed her on the mouth repeatedly, touched her breast and pressed his genitals against her — all without her consent.

Trump has denied the allegations. While stumping as a presidential candidate, he called them, as well as similar accusations disclosed by other women during the campaign, “lies” and “nonsense” motivated by what he said were efforts to get attention and to support his opponent, Hillary Clinton.

Zervos’ lawsuit claims that Trump’s statements defamed her, and she and her attorneys — including attorney Gloria Allred — are asking Trump to retract them, apologize and pay compensation.

Trump’s attorneys have asked Justice Jennifer Schecter to dismiss the case. But if the judge allows it to continue, Trump’s presidential campaign may have to release any documents related to more than a dozen women, including Zervos, who have accused Trump of sexual misconduct. Trump and the accusers may also have to face questioning by lawyers about these claims.

Both sides of the case presented arguments in an hourlong hearing at the New York State Supreme Court in Manhattan on Tuesday.

Marc Kasowitz, Trump’s personal attorney, argued that under the Supremacy Clause of the U.S. Constitution, a state court does not have jurisdiction over a sitting president, whom he described as “unique in the constellation of our government.” Calling a president into state court, Kasowitz said, would be using inappropriate “direct control.”

But Zervos’ attorneys, led by Mariann Meier Wang, countered that there is no legal precedent that could stop a state court from ruling on the actions of a federal official.

Wang cited the 1997 decision in Clinton v. Jones by the U.S. Supreme Court, which ruled unanimously to allow a sexual harassment case brought by Paula Jones against President Bill Clinton to continue in federal court while he was in the White House. Trump’s attorneys contend that case does not apply to lawsuits in state courts.

If the judge decides to allow the case to go on, the president’s lawyers have asked to delay it with a stay, which could last for seven years if Trump is re-elected. But Wang argued against delaying, citing the potential of losing evidence and witnesses’ memories.

The attorneys also presented arguments about Zervos’ defamation claim against Trump. The president’s attorney argued that Trump’s statements about the sexual harassment allegations are protected speech because Zervos initiated a debate with Trump with her accusations, which Kasowitz described as a “political” move to influence a presidential election. But Wang said that Zervos is not a “political commentator” and stressed that Trump’s remarks are “provably false.”

At the end of the hearing, Schecter said she would make a ruling later. It is unclear when her decision will be released on the court’s website. In case the lawsuit does move forward, Schecter asked Zervos’ attorneys whether they could be flexible to Trump’s schedule to minimize interruptions to his work as president.

Wang said she would be open to videotaped depositions and suggested recording them during his off-hours at his private Mar-a-Lago resort in Florida or while he is en route to playing golf.

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